Mediation - an Alternative to Legal Proceedings.
Traditionally, parties in dispute resorted to legal proceedings in an effort to solve that dispute and often the dispute is decided upon by a Court. However the process of Mediation is becoming increasingly used as an alternative dispute resolution, designed to avoid the need for parties to go to Court.
Mediation is an informal voluntary process whereby parties agree to meet with a person appointed as a mediator in an attempt to solve the dispute, without the need to go to Court. The process is voluntary, informal, and confidential and the parties retain control over the outcome of the mediation. Mediation is used in a number of areas including family, commercial, workplace, property and personal disputes. Mediation can also be directed by a Court, where the parties have already commenced legal proceedings or it can be a provision in a contract between the parties.
How does the mediation work? The parties agree to appoint a person as Mediator and the mediation is arranged for a specific date and venue. The Mediator will meet with both parties, either together or separately and try to obtain a general understanding of the dispute between the parties. The Mediator facilitates both parties to try to reach a settlement or positive outcome, but does not influence either party during the process. The Mediator is completely independent of either party in the process. The role of the Mediator is to encourage communication and negotiation. Either party can walk away from the Mediation at any stage and do not have to accept any settlement that they are not satisfied with.
Mediation is only binding when the parties reach a settlement and a formal Settlement Agreement signed by all parties. The parties retain control over the Mediation process which is not the same with legal proceedings. Mediation is recognised by the Courts as an efficient alternative to legal proceedings. Furthermore, if legal proceedings have commenced, the Court may put a stay on such legal proceedings to allow mediation to take place. If the Mediation is unsuccessful, then the parties may return to the legal proceedings in Court, during which any details of communications and negotiations of the Mediation cannot be disclosed.
Mediation is also more cost effective than legal proceedings. Generally, each party will pay for their own representation and the Mediator’s fee for conducting the Mediation is divided equally between the parties, unless otherwise agreed. Mediation is also less time consuming than court proceedings and this is another advantage to Mediation.
On 16th November 2010, the Law Reform Commission issued a report on Alternative Dispute Resolutions including Mediation, making several recommendations, including that, legislation should be enacted defining Mediation and Conciliation and recommending a Code of Practice for Mediators, and that the Government Departments and State bodies would be required to consider and attempt Mediation and Conciliation in appropriate cases before legal proceedings issue. Such are a few of the recommendations outlined in the Report. This is a clear indication within the profession that Mediation is being actively encouraged as an alternative to legal proceedings.
Juliet Lynch
Partner
Mullins Lynch Byrne
Solicitors
Melbourne House
Model Farm Road
Cork
Tel: 021 4340315
Fax: 021 4346100
Email: julietlynch@mlb.ie
